Case Note & Summary
The plaintiffs, a partnership firm, filed a suit for specific performance of an oral agreement dated 30.11.1977 for the purchase of a basement-cum-godown premises from the defendants. The plaintiffs claimed that they had paid earnest money and were ready and willing to perform their part. The defendants denied the agreement and contended that the suit was barred by limitation. The court examined the evidence and found that the plaintiffs failed to prove the oral agreement with sufficient certainty. There was no independent witness or contemporaneous document to support the claim. The court also held that the suit was not barred by limitation as the refusal occurred in 1978. However, the plaintiffs could not establish readiness and willingness. The court dismissed the suit, holding that the plaintiffs were not entitled to specific performance.
Headnote
A) Specific Performance - Oral Agreement - Proof - The plaintiff must prove the existence of an oral agreement for sale of immovable property with certainty. In the absence of independent evidence or contemporaneous documents, the court cannot decree specific performance. (Paras 1-10) B) Limitation - Suit for Specific Performance - Article 54 of Limitation Act, 1963 - The period of limitation for specific performance is three years from the date fixed for performance or, if no such date, when the plaintiff has notice that performance is refused. The suit filed in 1979 was held to be within time as the refusal was in 1978. (Paras 11-15) C) Part Performance - Section 53A of Transfer of Property Act, 1882 - The doctrine of part performance cannot be invoked unless the plaintiff proves that he has taken possession in part performance of the agreement and has done some act in furtherance thereof. (Paras 16-20)
Issue of Consideration
Whether the plaintiff is entitled to specific performance of an oral agreement dated 30.11.1977 for purchase of basement-cum-godown premises, and whether the suit is barred by limitation.
Final Decision
The suit is dismissed. No order as to costs.
Law Points
- Specific performance
- oral agreement
- limitation
- part performance
- readiness and willingness
- burden of proof
